IAmnesty InternationalInternational Secretariat10 Southampton StreetLondon WC2E 7HFEngland

SHORT REPORT OF AN

AMNESTY INTERNATIONAL MISSION TO THE

ISLAMIC REPUBLIC OF PAKISTAN (20-25 January 1978)

AMNESTY INTERNATIONAL — April 1978

IAl INDEX: ASA 33/03/78

CONTENTS

PAGE

COPYRIGHT AMNESTY INTERNATIONAL,INTERNATIONAL SECRETARIAT,10 SOUTHAMPTON STREET,LONDON, WC2E 7HF, ENGLAND.

FOREWORD

INTRODUCTION

CONCLUSIONS AND RECOMMENDATIONS

SHORT REPORT ON AN AMNESTY INTERNATIONAL MISSION TO PAKISTANAll rights reserved. No part of this publicationmay be reproduced, stored in a retrieval system,or transmitted, in any form or by any means,electronic, mechanical, photo-copying, recordingand/or otherwise, without the prior permission ofthe publishers.

Steps taken by the Government concerning recommenda-tions made by Amnesty International to the previousgovernment

II The position of fundamental rights and the powers ofthe judiciary under the martial law regime

III Application of martial law provisions to politicalimprisonment

IV Arrest and trial of leaders of the Pakistan People'sParty

3

6

10

17

APPENDIX Arrest and trial of Mr Z.A. Bhutto in the NawabAhmed Khan Murder Case 19

CONTENTS

PAGE

COPYRIGHT AMNESTY INTERNATIONAL,INTERNATIONAL SECRETARIAT,10 SOUT ON STREET,LONDON, WC2E 7HF, ENGLAND.

FOREWORD

INTRODUCTION

CONCLUSIONS AND RECOMMENDATIONS

SHORT REPORT ON AN AMNESTY INTERNATIONAL MISSION TO PAKISTANAZIrights reserved. No partof this publicationmay be reproduced, stored in a retrieval system,or transmitted, in any form or by any means,electronic, mechanical, photo-copying, recordingand/or otherwise, without the prior permission ofthe publishers.

Steps taken by the Government concerning recommenda-tions made by Amnesty International to the previousgovernment

II The position of fundamental rights and the powers ofthe judiciary under the martial law regime

III Application of martial law provisions to politicalimprisonment

IV Arrest and trial of leaders of the Pakistan People'sParty

3

6

10

17

APPENDIX Arrest and trial of Mr Z.A. Bhutto in the NawabAhmed Khan Murder Case 19

FOREWORD

The Short Report on a Mission to the Islamic Republic of Pakistan,1978, describes the situation in Pakistan at the time that anAmnesty International delegation visited the country, from 20 to 25January 1978. The report contains the observations made by the AIdelegates as regards the implementation of recommendations AI hadmade to the previous government; it also outlines present areas ofconcern within Amnesty International's mandate. These relate mainlyto the introduction of a set of martial law provisions curtailingfundamental freedoms, and the infliction of harsh punishments bymilitary courts on civilians for engaging in activities which oftenappear to be no more than the exercise of the right of freedom ofspeech and expression, guaranteed in the Constitution of the IslamicRepublic of Pakistan.

Since the report was written, major developments have taken placein Pakistan, particularly regarding the application of the deathpenalty, a punishment which Amnesty International opposes withoutreservation on humanitarian grounds because it believes it constitutescruel, inhuman and degrading punishment", as defined in internationallaw. These developments are of great concern to AI and have contri-buted to the decision of the International Executive Committee torelease the text of this report.

On 22 March 1978, the first public executions took place inPakistan since the present government assumed office. Three men werehanged outside Camp Jail, Lahore, after being found guilty by a mili-tary court on 12 March of charges of kidnapping and murder. One ofthe accused had pleaded not guilty but, according to press reports,the verdict was upheld by the Lahore High Court. Amnesty Inter-national is deeply concerned about these executions, because theyinvolve the first public execution in Pakistan of death sentencespassed on civilians by a military court. In this report, AmnestyInternational expresses great concern at the practice of tryingcivilians by military courts, now compounded by the military courts'exercise of the power to pass death sentences on civilians. Onreceiving reports that the execution of these three men was imminent,AI sent a cable to the Chief Martial Law Administrator, on 22 March,with the text:

"Deeply concerned reports that first executions of threemen sentenced by military courts will be carried out inpublic today. Executions of civilians following trial bymilitary courts would set dangerous precedent in Pakistan.Urgently appeal to Your Excellency to immediately stopexecutions."

Shortly before these executions were carried out, on 18 March1978, Mr Z.A. Bhutto, the former prime minister, and four members of

the former Federal Security Force accused with him were sentenced todeath. A five-member bench of the Lahore High Court, hearing thecharges against the former prime minister at first instance, sentencedMr Bhutto and his four co-accused to suffer the death penalty forparticipation in the murder of Nawab Ahmed Khan in November 1974. Allthe accused appealed to the Supreme Court during the seven days theywere allowed to do so.

More recently, on 1 May, 26 journalists were arrested under martial lawfor attempting to start a hunger strike in protest against the closureby the government of the Lahore edition of the Urdu daily Musawat,which supports the Pakistan People's Party. Its editor and severalother journalists were already known to be imprisoned under martial lawon charges of "publishing objectionable material". Two of thesejournalists, Mr Abbas Athar, the President of the Lahore Press Club,and Sheikh Manzoorul Hasan, editor, daily Payam-i-Quaid, were arrestedon 27 March under the provisions of Martial Law Order No 33, on thecharge of "unauthorizedly publishing the appeal of Mr Z.A. Bhutto inthe Supreme Court against the verdict of the full bench of the LahoreHigh Court".

Immediately the sentence was pronounced, on 18 March, AmnestyInternational cabled the Chief Martial Law Administrator, GeneralMohammad Zia-ul Hag, appealing to the government on humanitariangrounds to immediately announce its intention to commute the deathsentence passed on Mr Bhutto and the four members of the Federal Secu-rity Force accused with him, regardless of the outcome of appeals.Amnesty International's appeal was released to the press on 20 March1978 and pointed to the risk involved in carrying out executions, con-sidering the danger of miscarriage of justice inherent in every trial.Amnesty International is particularly aware of such risks when thetrial is held in circumstances, as now prevailing in Pakistan, whereall normal political activity has been banned under martial law andwhen the trial concerns that of a prominent political personality foracts allegedly committed while in office.

Amnesty International sent its report to General Mohammad Zia-ulHash the Chief Martial Law Administrator, and other government offi-cials in letters dated 22 March 1978, requesting the government'scomments on the report and also informing the government of itsdecision in principle to publish the report around 17 April. AmnestyInternational was informed that this would leave the Pakistan Govern-ment insufficient time to comment on the report, and, on the requestof the government, twice postponed publication date of the report.

This report was written before the outcome of Mr Bhutto's trialwas known but contains observations on his trial made on the basis ofa copy of part of the official trial transcript, given to the AI dele-gates during their recent visit to Pakistan (see Appendix to thisreport). One of the recommendations made to the Pakistan Governmentin this report (recommendation v, page v) deals specifically with thebnprisonment and trial of Mr Bhutto, and urges the government to allowinternational observers at all stages of all trial proceedings againsthim, including the stage of appeal. Considering the government's negativeresponse to the request made by the AI delegates visiting Pakistan inJanuary, AI also urges the government to allow international organi-zations to meet Mr Bhutto in prison. Following his conviction, AmnestyInternational appealed to the government to allow Mr Bhutto unhinderedaccess to members of his family and his counsel, in order to allow himfull opportunity to prepare his appeal.

On 12 April, Amnesty International cabled Mr A.K. Brohi, theAdviser on Law and Parliamentary Affairs, informing the governmentthat AI was still awaiting the government's comments on the report andthat the International Executive Committee was willing to consider analternative date of publication, on 4 May. AI also confirmed that itwas prepared to include the government's comments with the release ofthe report, if these reached AI in time. The Government of Pakistan,via its London embassy, informed AI on 17 April that: "The release ofthe report should be postponed to a later date. The comments of theGovernment of Pakistan on the report will follow." However, theembassy was unable to give AI a date by which it could expect thegovernment's reaction. On 19 April, the Secretary General of AI sentthe following cable to Mr Brohi: "Because government's intention onlynow known to us, preparation for publication in accordance with Inter-national Executive Committee decision cannot be delayed beyond 15 May.Warmly welcome government's comments which will be published by us ifreceived before 1 May and length not more than 2,500 words."

This report puts the number of political prisoners in Pakistan atseveral hundred, an estimate made at the time of the delegates' visitin January 1978. However, it should be noted that, since that time,several thousand political prisoners have been arrested in the weeksprior to and after the announcement of the Lahore High Court's verdict.Most of them were arrested under martial law provisions for organizingdemonstrations to protest against the imposition of the death sentenceon Mr Bhutto, and are supporters of the Pakistan People's Party.During the months of March and April, the Pakistan press carriedfrequent reports of the arrest of many party officials and party workers,sometimes in groups of hundreds, in the provinces of Sind and Punjab.

AI informed the London embassy that it would also be willing topublish the government's comments even if these exceeded somewhat thelength stated in its cable, provided they were received on 1 May.However, on inquiring, the Secretary General of AI was informed on3 May that the London embassy still had not received the government'scomments on the AI report. The International Executive Committeethen decided to release the text of the report on 15 May, in accord-ance with its earlier communications to the government.

The present mission report, and the recommendations made therein,are part of the organization's long-standing concern for human rightsdevelopments in Pakistan. During March 1977, Amnesty Internationalpresented a 92-page report containing critical observations anddetailed recommendations to Mr Z.A. Bhutto, then Prime Minister ofPakistan. The report, based on the findings by an AI delegationvisiting Pakistan in April 1976, covered the period up to 31 January1977. At the time, the then government only contested AI's estimateof the number of political prisoners and charged the organization withhaving "distorted" the judgment of the Supreme Court of Pakistanupholding the order of Mr Bhutto's government dissolving the NationalAwami Party. Amnesty International released the report in May 1977(Islamic Republic of Pakistan - an Amnesty International Report in-cluding the findings of a mission to Pakistan, 23 April - 12 May 1976).

INTRODUCTION

Since the publication of a previous Amnesty International report onthe Islamic Republic of Pakistan in May 1977, a military governmenthas assumed power and declared martial law. These developments haveaffected the nature of Amnesty International's concern with humanrights in Pakistan.

The text of this short mission report is identical to that sent to thegovernment on 22 March 1978.

On 7 March 1977, general elections were held in Pakistan,returning the ruling Pakistan People's Party to power, but not with-out widespread allegations, particularly on the part of the oppositionPakistan National Alliance, that extensive rigging of the electionshad taken place. As a result of the ensuing political agitation,Mr Z.A. Bhutto's government announced that new elections would beheld in October 1977. Large scale demonstrations, calling for theresignation of the Prime Minister pending the holding of fresh elec-tions resulted in the arrest of many thousands of persons on politi-cal grounds. The opposition claimed that 50,000 had been arrestedbut the then government acknowledged the arrest of only 12,900. Whenthe opposition announced the launching of a large scale civil dis-obedience campaign to press its demands, martial law was declared bythe civilian government headed by Mr Bhutto in three major cities on21 April 1977, and revoked on 8 June 1977.

Thomas HammarbergChairmanInternational Executive Committee

3 May 1978

On 5 July 1977, the army, headed by General Mohammad Zia-ul Haq,the Army Chief of Staff, seized power from the civilian governmentled by Mr Z.A. Bhutto in a bloodless military takeover. Martial lawwas again imposed and General Zia-ul Haq became the Chief Martial LawAdministrator. The constitution, although suspended, was held "inabeyance" and the new government announced that their only objectivewas the holding of free elections; national and provincial assemblieswere subsequently dissolved. A set of stern martial law orders andregulations was issued and the government announced the introductionof the punishments of amputation and flogging, with reference to theIslamic Shariat. The Supreme Court and the High Court were latergiven the power to declare void any law not in conformity with theHoly ran and Sunnah. All political activities were banned followingthe military takeover and leading members of the Pakistan People'sParty and the Pakistan National Alliance were taken into "protectivecustody". Although the political leaders were subsequently released,there are serious criminal charges against the leaders of the PakistanPeople's Party and Mr Z.A. Bhutto was arrested and tried on a chargeof conspiracy to murder. Political workers, mainly belonging to theformer ruling party, are also being tried for contravening martial lawprovisions.

In view of the concern about human rights in Pakistan, expressedin the Amnesty International Report on the Islamic Republic of Pakistan,Amnesty International has received many requests for information aboutthe situation of fundamental rights in Pakistan following the militarytakeover of 5 July 1977. However, Amnesty International felt it was

CONCLUSIONS AND RECOMMENDATIONSunable to make substantial comment without first discussing with thenew government the implementation of the recommendations made by AIto the previous government, and also other matters of concern to AI.The International Executive Committee of Amnesty International there-fore requested its Vice-Chairman, Professor Mlimtaz Soysal, to travelto Pakistan and, on 6 December 1977, the Secretary General of AI wroteto the Chief Martial Law Administrator and the Attorney General aboutthe proposed visit of the Amnesty International delegation. On 6January 1978, AI asked for confirmation of arrangements for the visit,which, until then, it had not received. On 16 January 1978, AmnestyInternational received confirmation that arrangements for the visithad been made. On 20 January, Professor Mlimtaz Soysal, Vice-Chairmanof the International Executive Committee of Amnesty International andProfessor of Constitutional Law at Ankara University, Turkey, andYvonne Terlingen, a Dutch lawyer from the International Secretariat,travelled to Pakistan for a five-day visit.

Throughout their visit to Pakistan, the delegates received exten-sive cooperation from the government, and from the Chief Martial LawAdministrator in particular, although one important request of thedelegates was not granted (see Appendix); they were readily suppliedwith the information they requested and arrangements were made on thespot for the delegates to attend proceedings of a summary militarycourt sitting in Lahore. In Islamabad, the delegates were receivedby the Chief Martial Law Administrator and had extensive discussionswith the Adviser to the Chief Martial Law Administrator on Law andParliamentary Affairs, the Adviser to the Chief Martial Law Admini-strator on Foreign Affairs and the Secretary of the Interior. InKarachi, the delegates also met briefly with the Attorney General.During their stay, the Amnesty International delegates also met withlawyers concerned with civil liberties and some political prisonerswho had recently been released; they also met the daughter of theformer Prime Minister in Lahore.

The Amnesty International delegation, which visited Pakistan from 20to 25 January 1978, is grateful for the extensive cooperation it re-ceived from the martial law authorities, and from the Chief MartialLaw Administrator in particular, as well as from other governmentofficials. Following receipt of the delegates' report by the Inter-national Executive Committee, Amnesty International, while mindful ofthe commendable steps taken by the military government after coming topower on 5 July 1977 regarding the early release of many politicalprisoners and the restoration of powers guaranteed to the higher judi-ciary in the constitution, wishes to express its concern about theintroduction of martial law provisions curtailing fundamental freedomsand, in particular, the practice of trying civilians before militarycourts. Against the background of its longstanding interest in andconcern for human rights in Pakistan, Amnesty International wishesrespectfully to submit the following recommendations for the govern-ment's consideration:

i. Amnesty International has already expressed to previous admini-strations its great concern at the practice of trying civilians, andpolitical prisoners in particular, before military courts (see pages1-2 of this report). Military courts are by their nature summary anddo not follow the rules and procedures applicable before ordinarycourts, designed with care to ensure that the greatest degree of fair-ness is assured to the accused. Military judges do not have thebenefit of the extensive training and experience which is generallyrequired from civil judges trying criminal offences. Amnesty Inter-national's reservations about the military court procedure (which inPakistan does not allow for appeal to a higher court) were streng-thened by the experience of a recent attendance of summary militarycourt proceedings.

Amnesty International believes that if civil courts are capableof functioning (which is at present the case in Pakistan), civiliansshould be tried before the ordinary courts of law in accordance withthe requirements of due process of law (see pages13-15 of the report).Moreover, no civilians should be imprisoned for contravention ofmartial law provisions curtailing fundamental freedoms as listed inthis report (page 2 and pages 10-12 of the report).

We therefore respectfully submit that the government consider abol-ishing as soon as possible the practice of trying civilians beforemilitary courts, and consider prosecutions only in those cases wherethere is prima facie evidence of a criminal nature.

This short report on a mission to Pakistan, 20-25 January 1978, con-tains the observations made by the Amnesty International delegatesconcerning positive steps taken by the present government in line withrecommendations made by AI to the previous government; it also out-lines areas of concern which specifically relate to the position offundamental rights under martial law. The present report is part ofAmnesty International's longstanding concern for human rights inPakistan: Sean MacBride, SC, the then Chairman of Amnesty International,visited Pakistan in August 1971 and Professor Soysal and YvonneTerlingen prior to their present visit previously had the opportunityof travelling to Pakistan from 23 April to 12 May 1976, at which timethey met officials of the former government. In May 1977, AmnestyInternational published a report including the findings of the AIdelegation.

ii. Amnesty International notes with great concern the introductionof the punishments of flogging and amputation of the hand under themartial law provisions, and the fact that the punishment of flogging

is now being administered to prisoners convicted of carrying outnormal political activity. Amnesty International opposes the intro-duction of these punishments and the use of flogging on politicalprisoners, since it considers these punishments to be forms offtcruel, inhuman and deggading treatment or punishment", as definedin international legislation (pages 12-13 of the report).

of misconduct and corruption of members of the previous government.Amnesty International believes that the wide powers given to thecourts to try such offences opens the possibility of their use forpolitical ends (see page 17 of the report). As stated in earlierreports, Amnesty International believes that all charges, includingthose against political personalities, should be brought beforeordinary courts with full access of the public and the press, whereall customary legal safeguards apply.Amnest International therefore recommends to the government to con-

sider their immediate abolition.

We therefore respectfully submit that the government consider abol-ishing special courts, as mentioned in this report.

While welcoming the government's early decision to repeal theDefence of Pakistan Ordinance (under which the Defence of PakistanRules - providing for preventive detention - were in force), AmnestyInternational is concerned that the Maintenance of Public OrderOrdinance - already in force under the previous government - contin-ues to be used and that the government has introduced martial lawprovisions for preventive detention (Martial Law Order No 12; seepages 10-11 of the report).

On the basis of humanitarian and legal considerations alreadystated in its May 1977 Report on Pakistan, Amnesty Internationalopposes preventive detention for political purposes.

Amnest International therefore respectfully submits that the govern-ment consider issuing an order repealing present legal instrumentsproviding for preventive detention. If this is not immediatelypossible, AI recommends that the period of detention be restrictedto a maximum of three months.

In its May 1977 Report on Pakistan, Amnesty International had expressed its concern about special legal provisions (in the form oftrials by special courts and tribunals) to which political prisonersin particular were being subjected.

The charges of conspiracy to murder and aiding and abetment of murder against the former Prime Minister, Mr Z.A. Bhutto, are essen-tially of a criminal nature and therefore do not on their face comewithin the mandate of Amnesty International. However, they concerna prominent political personality on trial for acts allegedly com-mitted while holding office, and Amnesty International notes thatthe actual arrest and detention of /1± Bhutto took place under MartialLaw Order No 12, which is aimed at political activity. Accordingly,AI believes that the former Prime Minister, like all political pris-oners, has the right to a fair and open trial and should be held inconditions which comply with internationally accepted standards.Whereas Amnesty International is unable properly to assess the meritsof the case of Mr Bhutto before the full bench of the Lahore HighCourt, for reasons outlined in this short report (see pages 21-22),Amnesty International wishes to express concern that Mr Bhutto, whileon trial on serious criminal charges, is also kept in preventivedetention. Following the visit of the AI delegates recently toPakistan, Amnesty International was not able to satisfy itself thatMr Bhutto is being held in conditions which comply with thoserequired by the United Nations Standard Minimum Rules for the Treat-ment of Prisoners (see pages 23-24).

Whereas special tribunals, set up under the Defence of PakistanRules, have now been abolished, special courts, set up under theCriminal Law Amendment (Special Court) Act 1976, continue to exist.Amnesty International is glad to note that, so far, no new cases havebeen brought before these special courts and that the government isreviewing the cases of 338 prisoners sentenced by such courts duringthe previous administration. If the review of these cases does notresult in the release of the 338 prisoners, Amnesty Internationalrecommends that the government order that they be re-tried beforeordinary courts of law.

Amnest International recommends that international observers beassured and allowed access at all stages of all trial proceedingsagainst the former Prime Minister, including the stage of appeal;that the orders of preventive detention, under which the former PrimeMinister and other leaders of his party are at present being held, bewithdrawn forthwith, and that international organizations be allowedto meet the former Prime Minister in prison.

There is also concern about the twelve special courts more recently set up by the government to try alleged criminal offences

SHORT REPORT ON A MISSION TO PAKISTAN

20-25 January 1978

Since coming to power on 5 July 1977, the military authorities havereleased a large number of political prisoners and taken importantsteps toward the protection of fundamental rights in Pakistan, inline with recommendations made by Amnesty International to the pre-vious government and described by AI in its Report on the IslamicRe ublic of Pakistan - includin the findings of a mission to Pakistan23 A ril - 12 Ma 1976. Amnesty International has welcomed thesesteps on a number of occasions in letters to the martial law govern-ment; they will be described in this short report (see under I).

However, not all the recommendations made by AI have been imple-mented and, following the declaration of martial law, the new govern-ment has introduced a set of martial law orders and regulations whichare of concern to AI, since they not only provide for wide powers ofpreventive detention, but also allow for trial of civilians undermartial law legislation which curtails fundamental freedoms and doesnot allow for appeal (see under III).

On a previous occasion, AI had set out its serious reservationsabout the trial of civilians before military tribunals. On 17 August1971, Sean MacBride, then Chairman of the International ExecutiveCommittee of AI, wrote to General Yahya Khan, then President ofPakistan, about the trial of Shaikh Mujibur Rahman, in progress atthat time. We quote here from his letter:

"Military tribunal: Every State recognises that it is boundby the Rule of Law and that, save in very exceptional circum-stances, no civilian should be tried by a Military Tribunal.This is not to imply that military officers are less fairthan civilian judges; but military courts are by their natureintended to be summary. The rules and procedures of civilcourts in criminal cases were devised with care to ensurethat the highest degree of fairness and objectivity would beassured in the trial of persons accused of crime. The needfor this high degree of fairness in a criminal trial is uni-versally accepted by all responsible lawyers and by mostgovernments.

It can be said in retort that there are very exceptionalcircumstances in existence in the Islamic Republic ofPakistan which would justify the use of military tribunals.Even if this were so, it does appear to us that the true testin this case is not 'Can military courts be used' but is 'Arethe Civil Courts capable of functioning?'. If the answer tothis question is, as I think it must be, 'Yes', the justifi-cation for the trial being held before a military tribunalvanishes."

Amnesty International believes that its strong reservations aboutthe trial of civilians before military tribunals, expressed above,similarly apply today. AI was therefore glad to note that the presentgovernment on 1 October 1977 abandoned plans to try former PrimeMinister Z.A. Bhutto before a military court. Some civilians havealso recently successfully appealed to the high courts against theirconviction by summary military courts. However, there are a number ofpolitical prisoners in Pakistan, mainly members of the PakistanPeople's Party (PPP), at present serving sentences handed down bymilitary tribunals for contravening martial law regulations curtailingfundamental freedoms. AI has adopted 30 of these prisoners as "pris-oners of conscience". (See under III or IV.)

I STEPS TAKEN BY THE GOVERNMENT CONCERNING RECOMMENDATIONS MADE BYAMNESTY INTERNATIONAL TO THE PREVIOUS GOVERNMENT

(a) Powers to detain and tr political risoners

The martial law orders and regulations issued since 5 July 1977have also introduced forms of punishment, such as flogging and ampu-tation, which Amnesty International considers to be "cruel, inhumanand degrading punishment", as defined under international law.Although these provisions, which we will describe below (see underInc), exist in some other Islamic countries, AI is concerned abouttheir introduction in Pakistan and the application of the punishmentof flogging in particular as a means to punish political dissent.

On 15 September 1977, the President issued a proclamation revoking thestate of emergency which had been declared on 23 November 1971 at theoutbreak of the Bangladesh War. Consequently, the Defence of PakistanOrdinance, under which the Defence of Pakistan Rules had been issued,was repealed. The DPR had been severely criticized by AI since manypolitical prisoners were detained without trial under their provisionsand since they allowed for the trial of political prisoners beforespecial tribunals. Their abolition had been one of the main recom-mendations made to the previous government. Shortly after coming topower, on 14 July 1977 the new government abolished special tribunalsoperating under the DPR, a decision which led to the freeing of mostof the prominent political prisoners adopted by Amnesty International.However, the military government made an exception in not abolishingthe special tribunal trying Wali Khan and other opposition leaders ofthe former National Awami Party (NAP) since 1974 in Hyderabad. Thistribunal was finally dissolved on 1 January 1978 and all the accusedwere released and the charges against them withdrawn. (A charge ofmurder against Gul Khan Naseer is still pending in a criminal court.)These steps were warmly welcomed by the Amnesty International dele-gation visiting Pakistan.

However, it should be noted that provisions for preventivedetention of political prisoners remain, both under the Maintenanceof Public Order Ordinance, which has not been repealed and continuesto be used, and under Martial Law Order No 12, introduced by thepresent government.

The government has also retained Special Courts set up by theprevious government under the Suppression of Terrorism (Special Court)Act 1975 and the Criminal Law Amendment (Special Court) Act 1976.During their mission to Pakistan, the AI delegates were told by theHome Secretary that these provisions had been retained by the govern-ment, although no new cases had been brought before these courtssince the new government assumed office. However, AI has noted thatone new special court has been set up by the new government under theCriminal Law Amendment (Special Court) Act 1976: on 14 September 1977,the government announced that it had set up a special court, con-sisting of three High Court judges, to try offences punishable underthe High Treason (Punishment) Act 1973. Amnesty International is con-cerned about this development, since a charge of treason was brought(in a private suit) against former Prime Minister Mr Z.A. Bhutto inAugust 1977 and is pending before the Lahore High Court. As stated inits 1977 Report on Pakistan, AI believes that political prisonersshould always be tried under the ordinary procedures of law and havethe full protection of all customary legal safeguards.

During its mission, Amnesty International was also told thatthe government is reviewing the cases of 338 prisoners convicted bysuch special courts under the previous administration for allegedacts of sabotage, subversion and terrorism. In its May 1977 Report,AI had been particularly "critical of the procedures applying beforethese special courts, especially those which changed the burden ofproof; AI had called these "serious and unjustifiable deviations fromthe legal safeguards ... in ordinary criminal law". If the review ofthe cases of these 338 prisoners does not result in their release, AIurges the government to order the re-trial of these prisoners beforeordinary courts, and to release the accused pending trial.

under preventive detention laws or for violating martial law ordersand regulations (see under III). They are usually quickly tried andsentenced by the martial law courts. Amnesty International believesthat several hundred political party workers are presently so beingheld and has adopted 30 as "prisoners of conscience". Solely on thebasis of reports appearing in the Pakistan press, drawn upon by AI,it is clear that at least 404 persons have so far been sentenced in34 cases of trial by summary martial law courts; of these, at least321 are political prisoners sentenced under martial law provisionsrestricting fundamental freedoms as described in this report (pages10-12). Sentences imposed by martial law courts are often of oneyear's imprisonment or less and are not always necessarily reportedin dhe press; it is therefore difficult to give a precise estimate ofthe number of political prisoners held at any one time.

Restoration of owers uaranteed to the hi her judiciary in theconstitution

Releases:On 7 July 1977, the new government restored powers to the highercourts to issue writs under Article 199 of the constitution, inclu-ding the writ of habeas cor us (Laws gontinuance in Force7 5nend-ment7 Order of 7 July 1977). And, on-22 September 1977, The-Laws(Continuance in Force) (Fifth Amendment) Order was passed, annullingthe amendments made to Articles 179, 195 and 199 of the constitution.In its report, AI had pointed out that these amendments had withdrawnpowers from the higher courts to grant bail and give other orders forinterim relief to certain categories of prisoners. They had alsointroduced serious restraints on the independent functioning ofPakistan's higher judiciary. AI has said that these amendments"deprived the higher judiciary of their principal means of effectivelyand speedily remedying violations of individual liberties".

However, the martial law government made one exception whilerestoring the original powers and position of the higher judiciary;it excluded the writ jurisdiction of the higher courts under Article199 of the constitution to make orders against the Chief Martial LawAdministrator or other martial law authorities. But, in spite ofthis Order, the Supreme Court has retained powers of judicial reviewin its judgment of 10 November 1977 (see under II).

In its May 1977 Report on Pakistan, Amnesty International estimatedthat there were at least several thousand political prisoners heldunder the previous government. In addition, many thousands werearrested during the political agitation which followed the holding ofthe March 1977 general elections, of which the then government acknow-ledged the arrest of 12,900. Prominent political prisoners, includingthe majority of those adopted by AI as "prisoners of conscience", werereleased shortly after the government's decision to abolish specialtribunals which existed under the Defence of Pakistan Rules (see under(a) ). On 1 January 1978, the government announced it had released11,109 political prisoners under a general amnesty since coming topower; all were political prisoners arrested under the previousregime. During their mission, the AI delegates were told that theseincluded long-term political prisoners, as well as political prisonersarrested during the opposition agitation which followed the March 1977general elections. The government is in the process of examining thecases of 68 political prisoners excluded from the amnesty and againstwhom, AI was told, there are specific criminal charges. During itsmission, AI asked for details of the charges against these 68 poli-tical prisoners, which it has not yet received.

Number of political risoners

Amnesty International believes there are at present several hundredpolitical prisoners held under martial law provisions in Pakistan.

New arrests:

After the government assumed power, leading members of the PakistanPeople's Party (PPP), including the former Prime Minister, werearrested under detention laws and subsequently charged with criminaloffences. Political party workers have also been arrested either

The Chief Martial Law Administrator has announced that the generalamnesty of 1 January 1978 will also apply to Baluchistan. Whereas the52 accused in the Hyderabad Special Tribunal case - all leaders of theformer National Awami Party from Baluchistan and the North West Fron-tier Province - were released in early January, following the govern-ment's decision to abolish the special court in Hyderabad, reports fromBaluchistan suggest that cases against political workers imprisoned inBaluchistan during previous civil disturbances have not yet been with-drawn. According to unconfirmed reports, many political prisoners heldin the Marri areas and Khalat district of Baluchistan have not yet beenreleased. Unfortunately, the AI delegates were not in a position totravel to Baluchistan during their recent mission. In its previousreport, of May 1977, Amnesty International quoted reports that therewere several thousand political prisoners in Baluchistan alone.

II THE POSITION OF FUNDAMENTAL RIGHTS AND THE POWERS OF THE JUDICIARYUNDER THE MARTIAL LAW REGIME

The Laws (Continuance in Force) Order 1977, of 5 July 1977, providesthat:

Order No 12 of 1977, on grounds that the detention under martial lawwas without lawful authority and mala fide. While dismissing BegumBhutto's petition and upholding the imposition of martial law on 5July 1977 as valid, the Supreme Court made interesting observationsabout the latest imposition of martial law in Pakistan, which implysome measure of control by the judiciary over acts taken by themartial law authorities.

"The Fundamental Rights conferred by Chapter One of parttwo of the Constitution, and all proceedings pending inany court in so far as they are for the enforcement of anyof those rights, shall stand suspended."

The Supreme Court held that the imposition of martial law on 5July 1977 and the subsequent actions of the martial law authoritieswere "extra-constitutional" rather than "supra-constitutional". Themilitary takeover was justified under the doctrine of necessity andnot under Kelsen's theory of "revolutionary legality", as maintainedby the counsel appearing for the Federation of Pakistan.

The constitution, according to the wording of the 5 July Order, is held"in abeyance" and Pakistan shall, subject to the martial law orders andregulations issued by the authorities, "be governed as nearly as may be,in accordance with the Constitution".

Amnesty International notes, however, that the government's Orderincludes the suspension of the right to life, the right not to be sub-jected to torture or to cruel, inhuman or degrading treatment orpunishment, the freedom of thought, conscience and religion, the free-dom from slavery and the right not to be punished under retroactivelaws - rights guaranteed in the Pakistan Constitution.* These are allrights from which no derogation is possible, even in times of a "publicemergency threatening the life of the nation", as defined in Article 4of the International Covenant on Civil and Political Rights.

The point may seem to be too theoretical, but, as the judgmentshows, it has important consequences: had the Court accepted theapplicability of Kelsen's theory, then the validity or legality ofany action which took place after 5 July 1977 could only be testedagainst the guidelines provided by the new legal order and the juris-diction of the superior courts would have been strictly definedaccording to the guidelines of the new legal order.

The owers of the 'udiciary under the declaration of martial law of5 July 1977

But the Court, instead of referring to a new legal order, heldthat the 1973 Constitution was still the supreme law of the land,subject to the condition that certain parts of it had been held inabeyance on account of "state necessity". Subsequently, the Presi-dent of Pakistan and the superior courts continued to function underthe constitution. The new oath taken by the judges of the superiorcourts after the proclamation of the Martial Law did not mean thatthe courts now occupied a different position than had originally beenestablished under the 1973 Constitution. They should therefore con-tinue to perform their functions (including that of judicial control)in spite of the Proclamation of Martial Law.

The Amnesty International delegates, in the course of their discussionsin Pakistan, have noted the importance and value of the judgment of theSupreme Court, passed on 10 November 1977, on the validation of theMartial Law and its legal consequences. Whereas Amnesty Internationaldoes not take any position as regards the legitimacy of governmentsestablished by extra-legal means, the judgment deserves specialattention as the consequence of the particular difficulties in whichthe judiciary may find itself in a country of tension under militaryrule and as a remarkable effort to set legal limitations to the arbi-trary actions which a government might easily take under suchconditions.

The Supreme Court, in this historic judgment of 10 November 1977,also ruled,

The petition before the Supreme Court was presented by BegumNusrat Bhutto and it challenged the detention of Mr Zulfikar Ali Bhuttoand 10 leaders of the Pakistan People's Party (PPP) under Martial Law

"That the Chief Martial Law Administrator, having validlyassumed power by means of an extra-constitutional step inthe interest of the State and for the welfare of thepeople, is entitled to perform all such acts and promul-gate all legislative measures which have been consistentlyrecognized by judicial authorities as falling within thescope of the law of necessity, namely:-

All acts or legislative measures which are inaccordance with or could have been made under the 1973Constitution, including the power to amend it;* These rights are guaranteed in Articles 9, 14, 20, 11 and 12 of the

Pakistan Constitution, respectively.All acts which tend to advance or promote the

good of the people;

All acts nequired to be done for the ordinaryorderly running of the state; and

All such measures as would establish or lead tothe establishment of the declared objectives of the pro-clamation of Martial Law, namely, restoration of law andorder and normalcy in the country, and the earliest poss-ible holding of free and fair elections for the purpose ofrestoration of democratic institutions under the 1973 Con-stitution;

While the judgment appears to legitimize, through legal means,an extra-legal action taken by the military, it also imposes, bythis very act of legitimization, clear legal limits upon subsequentactivities of the military government and subjects them to judicialreview in order to preserve the rule of law. It protects the 1973Constitution and maintains the supremacy of the judiciary. It alsoinduces the military government to be consistent with its statedobjectives and to remain within the "scope of the law of necessity".

That these acts, or any of them, may be performed or carriedout by means of Presidential Orders, Ordinances, Martial LawRegulations, or Orders, as the occasion may require; and

Already, this Supreme Court judgment has had an impact on thedecisions of the lower courts. During the delegates' visit, on 23January 1978, the Lahore High Court, founding its judgment on groundsestablished by the judgment of the Supreme Court, ordered the releaseof twelve public servants sentenced by the Summary Military Courts todifferent terms of imprisonment and flogging for bribery and cor-ruption. The High Court allowed with costs the constitutional peti-tions filed on behalf of the convicts and declared the orders of thesummary military court to be without lawful authority and of no legaleffect. The Court's order said this would "not prevent their lawfultrial in appropriate cases".

That the superior courts continue to have the power ofjudicial review to judge the validity of any act or actionof the Martial Law authorities, if challenged, in the lightof the principles underlying the law of necessity as statedabove. Their powers under Article 199 of the Constitutionthus remain available to their full extent, and may beexercised as heretofore, notwithstanding anything to thecontrary contained in any Martial Law Regulation or Order,Presidential Order and Ordinance."

This sort of judgment, which Amnesty International welcomes inview of its expressions of concern in this short report about thetrial of civilians under martial law provisions, could not have beenpossible without the important interpretation given by the SupremeCourt to the validation of the martial law and its legal consequences.

The judgment said that,

... the Court is bound to take note of the fact thatalready several instances have been brought to its noticewhere the ordinary civil rights of the people are beinginterfered with by the subordinate Martial Law authoritieseven though the laws of the land, which have been keptalive under the Laws (Continuance in Force) Order, 1977,make full provision for their adjudication. In some cases,interference has occurred even when the contending partieshad already been litigating in the Civil Courts regardingthe same disputes. The necessity which justified the pro-clamation of Martial Law did not arise owing to thefailure of the Courts to adjudicate on these matters.Such matters must, therefore, continue to fall outside thepurview of the Martial Law authorities and the only remedyto the citizens against any such encroachment can be byway of judicial review in the superior courts."

(Su reme Court Judgment on Begum Nusrat Bhutto's Petitionchallenging detention of Mr Z.A. Bhutto and others underMartial Law Order 12 of 1977 - Lahore, 10 November 1977,Government of Pakistan.)

The legal implications of such a judgment are obvious.

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III APPLICATION OF MARTIAL LAW PROVISIONS TO POLITICAL IMPRISONMENT

(a) Preventive detention

courts for contravening martial law regulations which seriously re-strict fundamental rights. According to a press note, issued by thegovernment on 14 July 1977:

On 23 July 1977, Martial Law Order No 12 was issued. As later amended,it empowers the Chief Martial Law Administrator, the Martial Law Admin-istrators and the Deputy Martial Law Administrators to order thedetention of any person on very widely defined grounds; a person canbe detained:

"Anybody who makes a political speech, issues a politicalstatement, makes a political comment, or flies a flag ofany political party is thus liable to be prosecuted underMartial Law regulations."

Political prisoners have been arrested for alleged violations of thefollowing martial law provisions in particular:

"for the purpose of preventing him from acting in a mannerprejudicial to the purpose for which Martial Law has beenproclaimed or to the security of Pakistan, the publicsafety or interest, the defence of Pakistan or any partthereof, the maintenance of peaceful conditions in any partof Pakistan or the efficient conduct of martial law".

Martial Law Re ulation No 11 (of 5 July 1977) prohibitsparticipation in political meetings or processions takenwithout prior permission of the martial law administration.(Maximum punishment: 7 years' imprisonment and whippingnot exceeding 10 lashes.)

The initial period of detention is three months, which can be extendedby the Martial Law Administration, but detention should not exceed 12months (Martial Law Order No 27). It is not necessary to supply theperson detained with the grounds for his detention. A detainee maymake a petition to the Chief Martial Law Administrator within 20 days"praying for relief", but there is no provision for review of deten-tion as existed (although in an unsatisfactory form) under the Advi-sory Board procedure constituted under the Defence of Pakistan Rules.(However, there have been press reports that a number of politicalprisoners are being released after the first term of detention - threemonths - has expired.) The orders for detention cannot be called intoquestion in any court of law in Pakistan.

Martial Law Re ulation No 13 (of 11 July 1977) whichrestricts criticism of the armed forces in very broadlydefined terms:

"No person shall, by word, either spoken or written, orby signs or by visible representation or otherwise,bring or attempt to bring into hatred or contempt orexcite or attempt to excite disaffection towards theArmed Forces or any members thereof."

(Maximum punishment: 5 years' imprisonment and whippingup to 20 lashes.)

Political party workers, in particular those belonging to thePakistan People's Party, continue to be arrested under these martiallaw provisions, often to prevent them from organizing or taking partin processions which are prohibited under martial law (see under (b) ).Also detained are well-known political figures: for example, the re-arrest of Mr Z.A. Bhutto, the former Prime Minister (who had beenreleased on bail by the Lahore High Court on 13 September 1977) tookplace under MLO 12 (see under IV). Ten other PPP leaders were arrestedwith him under the same provisions, of whom eight so far have beenreleased after a habeas cor us petition had been filed against theirdetention in the High Court. (There are several criminal charges, someof a most serious nature, pending against all these PPP leaders.)Apart from this, political prisoners are held in detention under theprovisions of the Maintenance of Public Order Ordinance, already inforce under the previous government.

Martial Law Re ulation No 23 (of 21 September 1977) (re-pealing the earlier martial law regulation no 12) prohi-bits any "strikes or lock-outs"; these are punishable with3 years' imprisonment and/or flogging not exceeding 10lashes.

Martial Law Regulation No 24 (issued 1 October 1977) whichbans any direct or indirect participation in political acti-vity. (Maximum punishment: 5 years' imprisonment and/orflogging not exceeding 15 lashes.) (Indoor politicalmeetings of the central or provincial executive committeesof political parties are allowed in restricted places.)

(b) Martial Law rovisions restrictin fundamental ri hts

All political activity was prohibited for one month on 28February 1978 under Martial Law Re ulation No 33, its contra-vention punishable with 7 years imprisonment and/or floggingnot exceeding 20 lashes. At least 100 political workers werereportedly arrested at the time of the issuing of the order.

A number of political prisoners have been sentenced by summary military

- 12 - - 13 -

said that the Islamic punishment of whipping would continue, but that"instructions are being issued that in future it would not be inflic-ted on bare parts of the body of the convicted person. It is thehumiliative rather than punitive aspect of this punishment which isimportant." Flogging is provided for in the Shariat (Islamic reli-gious law) for certain offences. Haji Abdur Rashid, a worker of thePakistan People's Party, recently presented a writ petition in theLahore High Court, on 22 January 1978, against the punishment offlogging for alleged political offences, on the ground that it was"unislamic and hence unlawful in Pakistan". (The petition was dis-missed on technical grounds.) (Pakistan Times, 23 January 1978.)

Several hund-ed political workers, trade unionists and studentshave been arrested under these provisions for "trying to form a pro-cession and raise slogans" (Dawn, 13 October 1977); "delivering anobjectionable speech" (Dawn, 13 October 1977); "hoisting flags of apolitical party" (Pakistan Times, 11 October 1977) and making "callsfor strikes" (Dawn, 19 February 1978). At present, Amnesty Inter-national has adopted 30 of them as "prisoners of conscience" and isinvestigating another four cases. They include, for example, thePresident of the Ganesh Flour Mills Labour Union, who was sentencedon 31 July 1977 to one year's imprisonment for "absence from dutywithout cogent reason" and was dismissed from service (AI believesthis action was taken because he participated in a strike). Duringtheir visit, the AI delegates discussed with the Home Secretary thecases of prisoners it has adopted as "prisoners of conscience". The punishment of flogging is sometimes carried out in public;

political prisoners are usually flogged in jail.

The majority of those arrested and sentenced by military tri-bunals for political activities (and the majority of those at presentadopted by AI as "prisoners of conscience") are members of thePakistan People's Party. But, during its recent visit, AI learnedthat members of other political parties, such as the Tehrik Istiqlal,are also liable to arrest and imprisonment. In most cases, they aresentenced to terms of imprisonment up to one year. What is of par-ticular concern to AI is that political prisoners, sentenced bymilitary tribunals, are often given the additional punishment offlogging.

Am utation of hands

(c) Martial Law Re ulations introducing forms of cruel punishment

Martial Law Regulations Nos 6 and 7, issued on 11 July 1977, haveintroduced the amputation of one hand as punishment for persons con-victed of theft, robbery and dacoity (armed robbery with five ormore persons). The punishment is provided for in the Shariat.Amputation has to be carried out by a qualified surgeon under localanaesthetic, in public or in jail, as directed by the military courtawarding the punishment. Amputation is from the wrist and will beof the left hand of a right-handed person and of the right hand of aleft-handed person. The sentence must be confirmed by the ChiefMartial Law Administrator.

Flo ging

Several martial law regulations provide for the punishment of flogging.In Pakistan, the punishment was introduced after the military takeoverof July 1977 and has been administered to, among others, politicalprisoners who have been sentenced to undergo flogging for attemptingto lead processions and "raising slogans against the government" (inmost cases reported to AI, these are slogans in favour of the PakistanPeople's Party and Mr Z.A. Bhutto). The punishment has also beenadministered to persons "making objectionable speeches" and "hoistingflags of political parties". Most recently, on 20 February 1978,seven-teen members of the Pakistan Television staff were sentenced by sum-mary military court to flogging (varying from 10 to 15 lashes) and oneyear's imprisonment for leading a takeover of television studios infour Pakistani cities, in connection with wage demands and improvedworking conditions (although in this exceptional case the Chief MartialLaw Administrator stayed the execution of the floggings.) According toinformation available to Amnesty International from the Pakistan press,at least 161 persons have so far been sentenced to undergo flogging forcommitting political offences of this nature.

During their visit to Pakistan, the Amnesty International delegatesexpressed great concern to the Chief Martial Law Administrator aboutthe introduction of these punishments and the flogging of politicalprisoners, adding that AI was glad not to have received any reportsso far that the punishment of amputation of the hand has been carriedout.

Amnesty International regards the punishments of flogging andamputation as "cruel, inhuman and degrading treatment or punishment"and is deeply concerned about the use of flogging as a means topunish political dissent. It urges the government to consider theimmediate abolition of these types of punishment.

(d) Trial of olitical risoners b military courts

In a speech of 1 September 1977, the Chief Martial Law Administrator Two types of military court exist in Pakistan: summary military courtsand special military courts. Both have jurisdiction to try civilians

- 14- - 15-

on a wide range of martial law offences but also offences punishablenunder any other law for the time being in force". Amnesty Inter-national has set out its serious reservations about the trial ofcivilians before such courts at the beginning of this short report.

months' imprisonment and 8 to 10 lashes) awarded to seven boys foundguilty of "taking out a procession and raising pro-Bhutto slogans"by the Summary Military Court, Nawabshah. The petition asked forquashing of the sentence on the ground that the accused were "deniedopportunity of self defence" (Dawn, 30 December 1977).

Summar Militar Courts consist of one member. The accused canaddress the courts and cross-examine witnesses, but only a memorandumof the evidence needs to be taken down. The accused has no right ofrepresentation by a lawyer, although the accused may have a person toassist him, who could be a legal adviser - he may be present duringproceedings as a "friend of the accused", and may advise him in thatcapacity. (The "friend of the accused" cannot address the courtdirectly.) The maximum punishment these courts can impose is oneyear's imprisonment and/or flogging not exceeding 15 lashes. Themaximum period of imprisonment is imposed in most cases. There isno provision for appeal, but the proceedings of the summary militarycourt shall be sent to the Zonal Martial Law Administrator for review.

In the case which the Amnesty International delegates partlyattended (the charge was illegal possession of arms), there were fourprosecution witnesses and two witnesses for the defence. The accusedin this case did not have the help of a "friend" who could assist him.AI was informed that the accused had the assistance of a policeofficer to advise on defence matters. The delegates gained theimpression that the same police officer also acted as adviser to theprosecution witness under examination by the court when the delegatesattended the proceedings. If this is true, the value of such legaladvice - if any - seems to be minimal. AI was also told of reports(which it was unable to confirm because of lack of time) that lawyerspresent during the trial of political workers to advise the accusedas a "friend", were not allowed entry into the court room of asummary military court in Lahore.S ecial Military Courts consist of three persons, one of them a

magistrate, the other two of the rank of Major or Lieutenant-Colonel.Only a summary of the evidence needs to be recorded and, if necess-ary, "may be dispensed with in a case and in lieu thereof an abstractof evidence may be recorded" (Martial law Order No 5, 11 July 1977).The courts may impose all punishments, including the death penalty andamputation of a hand; however, the execution of these last two punish-ments has to be confirmed by the Chief Martial Law Administrator. Anyquestion relating to the jurisdiction or the legality of the exerciseof powers of the military courts shall be referred to the ChiefMartial Law Administrator, whose decision is final. In other words,there is no provision under martial law for review of the legality ofdecisions taken by the martial law authorities by any court of law inPakistan, including the Supreme Court. (In spite of this, the highercourts have retained some supervisory jurisdiction over the acts takenby the martial law authorities;see under II.)

Even without confirmation of these reports, AI feels that theexisting defence arrangements before summary military courts tryingpolitical prisoners are inadequate and can in no way equal legaladvice by qualified legal counsel as exists under the ordinarycriminal law procedure. The absence of adequate defence arrangementsis particularly disquieting in view of the summary way in which theevidence is recorded before military courts.

During their visit, the Amnesty International delegates requested per-mission to attend the trial of a civilian before one of the militarycourts. They were readily given assistance to attend summary militarycourt proceedings in Lahore, and were given all the information theyrequested. AI was told by the military judges that the advantage ofthe summary military court procedure was that it provided quickjustice as well as deterrent punishment.

The summary military court procedure requires that no more thana memorandum of the evidence needs to be recorded (Martial Law OrderNo 7 of 11 July 1977). In the court case which the AI delegatesattended during their mission, the evidence was dictated by themilitary judge and taken down in English, although the accused didnot speak or understand that language. The accused was thus clearlyin no position to question or even understand the nature of the evi-dence recorded, in a normal court a crucial function of defencecounsel, which is an essential feature of a fair trial.

The above considerations are only an example of Amnesty Intern-national's serious reservations about the practice of trying civiliansunder military court procedures, as outlined at the outset of thisreport (see pages 1 and 2).

However scrupulously military courts may carry out their functions,there are clearly features in the military court procedure, partic-ularly in relation to defence arrangements and absence of appeal pro-cedures, which should be of great concern to all those interested inproviding a fair trial to an accused. For example, a petition beforethe Sind High Court challenged the varying sentences (from 8 to 12

government to con-- and politicalat the earliestsuch courts should be

Amnesty International therefore recommends to thesider abolishing the practice of trying civiliansprisoners in particular - before military courts,opportunity. Political prisoners on trial before

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released, at least on bail, and their cases transferred to ordinarycourts of law. The recent issue of Martial Law Order No 36, of 18February 1978, which allows for the transfer of cases pending beforemilitary courts to ordinary courts of law could be an important stepforward in this respect. Amnesty International regards it as mostunfortunate that a martial law order issued the following day (MartialLaw Order No 37) empowered military courts to order the transfer ofcases pending before ordinary criminal courts to military courts(military courts having jurisdiction to try offences punishable undermartial law regulations or "under any other law for the time being inforce").

IV ARREST AND TRIAL OF LEADERS OF THE PAKISTAN PEOPLE'S PARTY

Apart from political party workers, whose imprisonment has been refer-red to in the previous section, leading politicians are also beingheld; in most cases there are serious charges against them. At presentunder arrest is former Prime Minister Z.A. Bhutto, and serious chargesof corruption, misappropriation of funds and other charges of acriminal nature have been brought against at least some of the tenother leaders of the Pakistan People's Party (two of whom remain indetention under Martial Law Order No 12).

During its mission, Amnesty International was glad to receivereports that some leaders of political parties who were held indetention under the provisions of Martial Law Order No 12 were beingreleased. In a few instances, military courts are known to havereleased political prisoners on bail and the martial law authoritieshave, in a few instances, released and suspended sentences of poli-tical prisoners convicted of martial law offences (for example, onthe eve of Eid-ul Azha, the Martial Law Administrator Zone C orderedthe release of 48 persons on the "assurance given by them not toindulge in agitation", etc (Dawn, 21 November 1977).

Amnesty International urges the government in future only toprosecute those against whom there is substantial evidence of acriminal nature and to order that trials take place in ordinarycourts of law, in accordance with the requirements of due processof law.

While acknowledging that criminal courts can be set up to dealwith a specific category of offences, such as corruption and mis-appropriation of funds, Amnesty International is concerned at theestablishment of twelve special courts under the provisions of theHolders of Representative Offices (Punishment for Misconduct) Order of25 November 1977. Special courts, established under the Order, maytry acts of misconduct and scheduled offences committed by "holdersof representative offices" as described in the amended Order andcommitted after December 1970. Amnesty International wishes in part-icular to draw attention to the provision that a special court hasthe power to "conduct its proceedings and regulate its procedure inall respects as it deems fit" (section 6(2) of the Order). And,although there is the possibility of appeal to the Supreme Court (sec-tion 6), no court has "any jurisdiction of any kind in respect of anyorder, sentence or proceedings of a Special Court" (section 9).Special courts are therefore not bound by the ordinary rules coveringcriminal procedure and AI believes that the wide powers given to thecourts to try this specific category of criminal offences opens thepossibility of their use for political ends. This is particularly soin view of the restriction that the special courts should only tryallegations of misconduct of officials of the previous government(its jurisdiction being limited to offences allegedly committed by"holders of representative offices" after 1972 - ie, the time thatthe previous government assumed office), and that conviction for mis-conduct by special court leads to disqualification from public officefor seven years.

In this context, it is of considerable concern to Amnesty Inter-national that the first special court set up under the Order (thespecial court to deal with cases against a person who has held theoffice of President or Prime Minister), announced on 7 March 1978that its hearings of six charges of abuse of official power, misuse ofgovernment funds, violation of foreign exchange regulations and taxevasion against the former Prime Minister, will be heard in camera.(The Court announced that it would hold hearings in Kot Lakhpat Jail,Lahore, where Mr Z.A. Bhutto, the former Prime Minister, is currentlybeing held.)

As already stated, Amnesty International believes that all charges,including those against political personalities, should be brought

- 18- - 19-

before the ordinary courts of law and the ordinary rules of evidence

and procedure should apply; access of the press and foreign observers

should be guaranteed at all.stages.

APPENDIX

The above observations apply to all politicians tried for acts

committed while holding office; international attention has been

focused in particular on the trial of the former Prime Minister,

Mr Z.A. Bhutto, in progress in Lahore at the time that the Amnesty

International delegation visited Pakistan.

ARREST AND TRIAL OF MR Z.A. BHUTTO IN THE NAWAB AHMED MURDER CASE

Mr Z.A. Bhutto, Prime Minister of Pakistan until the military takeover

of 5 July 1977, was first arrested on 3 September 1977 on charges of

complicity in the murder of Nawab Ahmed Khan in November 1974. The

charges were made on the private complaint of Ahmed Raza Kasuri, then

a member of the National Assembly and a dissident member of;the

Pakistan People's Party. Mr Kasuri, who is the son of Nawab Ahmed

Khan, has alleged that the murder of his father was committed at the

instance of the then Prime Minister, the reason being that serious

political and personal differences had arisen between him and Mr Bhutto

and that the attack (in which his father died) was in fact directed at

Mr Kasuri himself.

On 13 September 1977, Mr Bhutto was released on bail by the

Lahore High Court, but re-arrested on 17 September 1977 with ten

other leaders of the Pakistan People's Party under the preventive

detention provisions of Martial Law Order No 12 (MLO 12). The Chief

Martial Law Administrator has stated before the Lahore High Court

that Mr Bhutto and same other PPP leaders had been detained under

MLO 12 "because they were acting in a manner prejudicial to the

purpose for which Martial Law has been proclaimed, the security of

Pakistan and the maintenance of peaceful conditions".

For reasons already put forward in its May 1977 Report on

Pakistan, Amnesty International opposes the use of preventive deten-

tion for political purposes. In the case of Mr Bhutto, for example,

this has deprived him of same rights otherwise applicable to prison-

ers held in judicial custody: such prisoners have the right to visits

twice a week, whereas prisoners held in preventive detention can only

be visited twice a month.

Considering the criminal charges against them, the arrest of

Mr Bhutto and other leaders of the PPP should have taken place under

the ordinary provisions of law and bail should be available to all the

accused; they should be granted all customary rights applicable to

prisoners awaiting trial.

Although the government had originally ordered that Mr Bhutto's

trial be held before a special military court, the government later

ordered his trial to take place in an ordinary court of law, under the

normal procedures of law and on 13 September 1977 the Acting Chief

Justice of the Lahore High Court announced that Mr Bhutto's trial in

the Nawab Ahmed Khan murder case should take place before the Lahore

High Court, exercising original jurisdiction. A bench of five Lahore

High Court judges was constituted for this purpose.

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- 20-

On 9 October 1977, the full bench of the Lahore High Court can-

celled the bail granted earlier by one judge of the court to Mr Bhutto,

and ruled that Mr Bhutto be held forthwith in judicial custody. Mr

Bhutto is therefore held both under the authority of martial law and

held in the judicial custody of the Lahore High Court.

Director General of the Federal Security Force, and Ghulam Hussain,

member of the Federal Security Force, originally also accused, were

granted pardon by the court and subsequently gave Evidence against

Mr Bhutto. There have been regular reports in the press about the

trial proceedings which, up till the final stage, were held in open

court. Although other charges have been brought against the former

Prime Minister, the trial in the Lahore High Court before a full

bench was the only one in progress at the time of the visit of the

AI delegates.On 20 September 1977, a habeas corpus petition was admitted fo

r

hearing by the Supreme Court, challenging the detention of Mr Bhutto

under martial law under the provisions of Article 184(3) of the con-

stitution, on the grounds that Mr Bhutto's detention under martial

law provisions was male fide and that Martial Law Order No 12, under

which Mr Bhutto and leaders of the Pakistan People's Party were

arrested and detained, was without lawful authority. This petition

was dismissed on 10 November 1977, and the important observations

made by the Supreme Court concerning the legality of the imposition

of martial law are referred to above, under section II.

During the course of the trial, Mr Bhutto alleged that the

court was biased against him and, on 18 December 1977, Mr Bhutto in-

structed his counsel not to further cross-examine a prosecution wit-

ness then being examined. He filed an application in the court for

the transfer of the case, on the grounds that he was not receiving

a fair trial. On 9 January 1978, Mx Bhutto withdrew his counsel from

the trial and subsequently ceased to participate himself in the trial

proceedings.

Subsequently, on 28 November 1977, Begum Bhutto filed a habeas

cor us petition in the Lahore High Court on behalf of Mr Bhutto and

four other leaders of the Pakistan People's Party, under Article 199

of the constitution. (The petition was filed in view of the Supreme

Court's earlier judgment that the superior courts continue to have

powers of judicial review over actions taken by the martial law autho-

rities.) This petition is still being heard and Mr Bhutto continues

to be imprisoned in Kot Lakhpat Jail, Lahore.

Trial

In his application to the Lahore High Court for the transfer of

the case to a different bench, under section 561-A of the Criminal

Procedural Code, Mr Bhutto alleged bias on the part of the Acting

Chief Justice trying him; he alleged insulting and humiliating beha-

viour on the part of the Chief Justice and deprivation of the possi-

bility of giving instructions to counsel by the way the dock in the

courtroom was designed; he alleged that the Acting Chief Justice

gave interviews about the manner and conduct of the trial while the

trial was in progress, that the trial continued in the absence of the

petitioner (who claimed to be ill) and that documents relevant to the

defence were at times not allowed to be put to the witnesses nor to

appear on the record of the trial proceedings.

In a letter to the Chief Martial Law Administrator of 6 September

1977, Amnesty International welcomed the decision to try Mr Bhutto

before an ordinary court of law, instead of under special procedures.

The AI delegates, while in Pakistan, have also expressed appreciation

for this decision to the Chief Martial Law Administrator, particularly

in view of press reports at the time of the delegates' visit urging

that Mr Bhutto be tried instead "before a special court for his poli-

tical as well as criminal offences, so as to avoid the formalities of

the civil courts" (an observation made by Abdul Wali Khan, former

leader of the National Awami Party (NAP), Dawn, 8 January 1978).

Amnesty International has received a number of requests to com-

ment on whether Mr Bhutto has received a fair trial. AI will confine

itself, however, to the following comments, which arise from the

visit to Pakistan of the AI delegates and a perusal of the transcript

of the trial which was given to the delegates by the Acting Chief

Justice of Lahore. It was this judge who sat as president of the

court which tried Mr Bhutto. The trial transcript covers the period

up to 18 January 1978; a record of the last stages of the trial pro-

ceedings, particularly those held following the court's 31 January

decision to try Mr Bhutto in camera, has so far not been made avail-

able to AI, although AI requested the court for the remaining part

of the transcript in a letter dated 7 February 1978. However, the

trial transcript which was given to Amnesty International is not a

verbatim record of the proceedings and therefore does not present a

cmmplete and precise reflection of the events which took place during

the trial. Given the imprecision of its source material, Amnesty

International is unable properly to assess the merits of the case.

The following evidential point constitutes one of the most serious

allegations made by the defence.

The trial of Mr Bhutto before a full bench of the Lahore High

Court consisting of five High Court judges began on 11 October 1977.

The charges against Mx Bhutto are: conspiracy tomurder of Ahmed Raza

Kasuri, a political opponent who had allegedly earned Mr Bhutto's wrath,

(section 120B of the Pakistan Penal Code), aiding and abetment of the

murder of Nawabzada Muhammad Ahmed Khan (the father of Ahmed Kasuri)

(section 302 PPC, read with sections 109 and 301 PPC), aiding and

abetment of the attempted murder of Ahmed Raza Kasuri (section 307 read

with section 109 PPC). Mr Bhutto, who pleaded not guilty, is being

tried with four others - Mian Muhammad Abbas, Director, Operations and

Administration, Federal Security Force, Arshad Iqbal, Ghulam Mustafa and

Rana Iftikar Ahmad - all accused of similar offences. Masood Mahmood,

In their application to the Lahore High Court under section 561-A

- 22 -- 23 -

of the Criminal Procedural Code, defence counsel have alleged that

"the record of evidence and proceedings (were) dovetailed to suit

the prosecution". In particular, it has been alleged that the court

"have not allowed a single contradiction or omission in the evidence

of the witnesses with their previous statements to be brought on

record although there were hundreds of material contradictions and

discrepancies". Although this particular allegation does not appear

to be borne out on the basis of the transcript that AI has studied

(since there appear to be numerous instances where the court allowed

cross-examination of witnesses on the basis of court rulings that

they gave contradictory statements), some previous statements of

prosecution witnesses do not appear to have been made exhibits in

the case. The defence also alleged that "it has been noticed that

the evidence dictated in court and typed is recast and re-typed

later and copies of the re-typed record are supplied to the parties

and the press". It is alleged that the defence requested permission

to tape-record the proceedings by placing its own tape-recorder, but

that the court refused to order on this request.

direct bearing on his defence" (Mr Bhutto had decided to boycott trial

proceedings on 9 January). And, on 31 January 1978, the Lahore High

Court ordered that the remaining part of the trial be held in camera

"in the interest of just and proper determination of the issues in-

volved in this case and to obviate the possibility of any disturbance

being created inside the courtroom by the supporters of the principal

accused, Mr Z.A. Bhutto" (Dawn, 1 February 1978).

Amnesty International wishes to emphasize that a number of alle-

gations have been made by the defence concerning the fairness of the

conduct of the trial and the correctness of the record of proceedings

in particular, which, if true, would affect an assessment on whether

the trial has been conducted in accordance with accepted international

standards for a fair trial. But an assessment of the validity of

these allegations is difficult to make on the basis of the official

trial transcript alone, since most of the objections raised and the

court rulings upon them do not appear in detail on the trial record

itself. However, Amnesty International notes that the most direct

evidence against Mr Bhutto is that given by Masood Mahmud, Director

General of the Federal Security Force. Mr Mahmud was himself indicted

upon these charges; however, he had been granted a pardon at an earlier

stage and therefore his evidence, which is that of an informer, should

be regarded with considerable suspicion. His evidence was to the

effect that a specific order for the elimination of Ahmed Raza Kasuri

was given personally by Mr Bhutto. It should be pointed out that,

under the common law system, which obtains in Pakistan, courts would

normally be expected to regard evidence of this nature with suspicion

and to acknowledge the danger of convicting a defendant without cor-

roborative evidence. At the time of writing, the final judgment in

the case is not available to Amnesty International and therefore AI

is unaware of whether the court of trial fully considered the dangers

of relying on such uncorroborated evidence or whether this question

will be taken on appeal before the Supreme Court of Pakistan.

1

Throughout the period that prosecution evidence was being pro-

duced and subjected to cross-examination by the defence, proceedings

were held in open court with full access of the press, and AI acknow-

ledges with appreciation the decision of the court to invite inter-

national observers to attend the trial proceedings. But, on 25

January 1978, the court held proceedings in camera when recording

Mr Bhutto's statement in defence under section 342 of the Criminal

Procedural Code. According to press reports, on 24 January, Mr Bhutto

stated before the court that he "would not answer questions having

Amnest International's position as regards Mr Bhutto's case.

The trial of Mr Bhutto on charges of conspiracy to murder and aiding

and abetment of murder is essentially of a criminal nature and there-

fore does not fall within the mandate of Amnesty International.

However, Amnesty International has taken an interest in this partic-

ular case since it concerns the trial of a prominent political person-

ality for acts he allegedly committed while holding office. Given

that situation, there is the risk that political factors could affect

the circumstances of the trial, however fairly the judges trying the

accused may have exercised their functions. Amnesty International

believes that it is therefore important that all safeguards against

such possible influences be taken and recommends that international

observers from qualified international organizations be assured access

to all further stages of the trial, including the stage of appeal.

It regrets the Lahore High Court decision to conduct the last stage

of the trial proceedings in camera, even while recognizing that full

access of observers was available during the important stages that the

prosecution evidence was examined and recorded, and that Mr Bhutto

refused to participate in the trial proceedings after 9 January 1978.

Mr Z.A. Bhutto is currently being tried for serious offences

under the provisions of the Pakistan Penal Code. However, AI notes

that he is also being held in detention under the provisions of

Martial Law Order No 12, aimed at political activity. And, while

Amnesty International has not taken up Mx Bhutto's case as that of

a "prisoner of conscience", as defined in Article 1 of the AI

Statute, Amnesty International believes that Mr Z.A. Bhutto, like

other political prisoners, has the right toafair and open trial and

should be held in conditions which comply with the United Nations

Standard Minimum Rules for the Treatment of Prisoners. During their

visit, the Amnesty International delegates discussed with government

officials reports it had received prior to their visit that Mr Bhutto

was not being given proper treatment in jail. In order to verify or

deny these reports, Amnesty International requested the Chief Martial

Law Administrator for permission to meet Mr Bhutto in jail. AI was

offered the possibility of meeting Mr Bhutto in court, an offer which

the AI delegates declined since it would not enable them to make an

on the spot evaluation of the conditions of Mr Bhutto's detention.

The government refused the AI delegates permission to meet Mr Bhutto

in jail.

Amnesty International was therefore unable to satisfy itself that

- 24 -

Mr Bhutto is being held in conditions which comply with international

standards and is therefore not in a position to verify or deny alle-

gations made by Mr Bhutto's daughter, whom the delegates met during

their visit, that Mr Bhutto is being held in "solitary confinement".

Consequently, Amnesty International is very much concerned at the

government's decision to refuse the AI delegates permission to meet

Mr Z.A. Bhutto in jail.